R. v. LAM KA MING

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. The applicant was convicted of robbery after trial by H.H. Judge Chua and sentenced to be detained in a training centre. He seeks leave to appeal against conviction.

3. The case for the prosecution was that at about 9.45 p.m. on the 19th February 1991, the victim, a tourist from the U.S.A., was robbed inside the lavatory of the Sogo Department Store when assisting his five-year old daughter in relieving herself. As he was thus bending forward over the toilet bowl he saw a revolver pointing at his stomach. He turned around and saw a face some eight inches away from him. He also noticed another man behind that person. He was then struck twice on the head with the pistol.

4. The main issue at the trial was one of identification.

5. When the victim arrived at the Police Station a couple of hours after the robbery, he was in pain and tired, and he refused to look at the "mug book" because he would probably not be able to identify the persons involved. However, that very night when discussing the incident with his wife, he realized that the image of the. robber was vivid in his mind and he had in fact seen him clearly three times before the robbery in the Department Store. Subsequently, when he attempted to reach the police to tell them he could now remember the face of the robber and to say he was prepared to look at "the mug book", his attempts met with no response and he returned to the States. For this reason no identification parade was held.

6. On the day of the trial on the 3rd March 1992, however, when the victim entered the courtroom, he suddenly found that he was able to recognize the applicant (who was in the dock) as the robber. He was examined at some length, both by counsel as well as the learned trial judge, as to how he was able to identify the applicant. The gist of his evidence was that as he entered the courtroom, he noticed the applicant's eyes and felt sure he was the robber. In answer to the judge's question, the victim described the "first man" (- the first robber) as a Chinese about 5'8" or 5'10" tall, medium size, medium built, with medium length of hair and wearing a black leather jacket and black trousers, speaking Cantonese and with a pistol.

7. The judge in her Reasons for Verdict said this:

"Having observed PW1's (i.e. the victim's) demeanour and examined the description of the robber  he gave to the police (which in itself is unremarkable) and the fact of Dl I am satisfied beyond reasonable doubt that PW1 did recognize the defendant as a face he remembered from the robbery and not because it was behind bars in the dock. Dl's face is different from other Chinese men one generally sees in Hong Kong. He is unusually fair. His hair parts naturally in the middle. His eyes are wide apart and slant proverbially upwards at the outer corners. Although most Westerners have preconceptions that Chinese eyes are small and slant upwards at the corners, this is not necessarily so. PW1 has given us details about the four times he saw the defendant. I am satisfied PW1's identification is genuine in that he did recognize D1 when he came into court. This instant recognition was not as such a dock identification. I am satisfied in this case the dangers of a mere dock identification was not present. I am also satisfied this identification is reliable. This was the conclusion I came to after bearing in mind the dangers of identification evidence and the warning I gave myself with regard to the principles expressed in the Turnbull case."

8. The victim's identification forms the subject matter of the first four grounds of appeal. The gravamen of those grounds are: (1) that the judge erred in allowing or orchestrating a dock identification of the applicant; (2) the judge took an unduly active part in the examination of the victim; (3) (1) the quality of the identification evidence was poor; (3)(2) the judge, not being sure of the victim's identification evidence, after his evidence was already completed, recalled the victim of her own initiative; and (4) in accepting the victim's evidence, she sought to strengthen her acceptance by adding her own observations not relied on by the victim in recognizing the applicant, and she failed to afford an opportunity to the defence to deal with those observations.

9. On Ground 1, we would simply observe that the victim's identification of the applicant in the dock was not a "dock identification" as we normally understand the phrase. The victim described how he came to recognize the applicant when he entered the courtroom. He said that as he entered the courtroom he was looking for the accused at the table because in America they would be sitting down at the table with their counsel. It was the applicant's eyes that impressed him the most.

10. In the circumstances, the judge could certainly not been described as having allowed or orchestrated a dock identification. We find nothing remiss in the way the learned judge conducted this part of the proceeding.

11. By Ground 2, it is complained that the judge took it upon herself to question and lead the victim and adopted a role of a prosecutor, and so on. It is true that the judge asked perhaps too many questions when the victim was giving his evidence, but there is nothing that shows that she had descended into the arena or was biased in any way. It was more an indication that she was at pains to understand precisely how it was that the victim was able to identify the applicant. There is nothing of substance in this ground of appeal.

12. Ground 3(1) refers to the poor quality of the identification evidence. I shall deal with this together with Ground 4.

13. Ground 3(2) states that the judge, not being sure of the evidence of identification, sought to recall the victim of her own initiative, after he had already completed his evidence. In the course of the evidence of a detective police constable Lam Lap-ching, the judge intimated that she would like to recall the victim as her witness. Then, according to the transcript, the following exchanges followed:

"Crown: The police have found PW1. (i.e., the victim)

Court: Is he here? I shall tell you now what I intend to ask him. He spoke in very positive terms that he saw a gun. That is quite different from a knife. But I want to ask whether Mr. Lenhoff thinks there is a possibility he made a mistake as to the gun and the identity of the person holding the gun.

Counsels: We are totally happy for you to ask those questions.

PW1 returns to the witness-box and is reminded of his oath.

Court:  Are you sure it was a gun or is it possible that you were mistaken and it was a knife.

A:  I'm sure it was a gun.

Court: Are you sure the man who pointed that gun at you was D1 or might you have been mistaken.

A: I am sure it was D1 (i.e. the applicant)."

14. The reference to a knife arises from a cautioned statement made by the applicant and admitted in evidence. In the statement, the applicant made no mention of a child. At the very least, there must be a query as to whether the statement relates to this robbery.

15. In the light of the transcript reproduced above, Ground 3(2) must fail.

16. Ground 4, on the other hand, gives cause for concern. As stated in Ground 3(1), the quality of the identification evidence is weak, e.g. there had been no identification parade held, the applicant was not someone known to the victim, apart from three casual and brief encounters in the Sogo Department Store prior to the robbery; the mental state of the victim at the time of the robbery when he was concerned with what he thought was a matter of life and death for his daughter and himself; the lapse of time between the robbery and the trial, which was just over one year, and the "unremarkable" features described by the victim, as observed by the judge. It was therefore, in the light of such evidence, incumbent upon the judge to take special care in her scrutiny and assessment of the evidence. It was said in the Reasons for Verdict that the Turnbull guideline was considered, and we have no reason to doubt that the judge did just that but did just that, but her description of the unusual facial characteristics of the applicant as she saw them seemed at odds with the tenor of the victim's description which was simply that the applicant's features were "unremarkable". Her reliance upon her own perceptions, which we have already set out, her description of the unusual facial has raised three matters which we find disturbing. Firstly there is no evidence to indicate whether or not those perceptions accorded with those of the victim and played a part in the identification of the applicant. Secondly our own observations leave us in some doubt as to the correctness of those perceptions. Thirdly the judge indicated that she was relying upon her own perceptions only when she came to deliver her reasons and the defence, therefore, had no opportunity to deal with them.

17. In our judgment, the judge was not entitled to rely on her own observation of the applicant's features, not disclosed to the applicant at the trial, to bolster her acceptance of the victim's description.

18. For those reasons, we find the conviction unsafe and unsatisfactory.

19. There is yet another ground of appeal, Ground 6, which after discussion with counsel, we do not feel necessary to deal with.

20. The application for leave to appeal against conviction is allowed, we treat the hearing of the application as hearing of the appeal and allow the appeal. Conviction quashed and sentence set aside.